I have one or two things to say about each of the Solicitor General's four arguments.

First, the alleged preclusion by California, he says if I understood him correctly that California holds only that if a state has no historic title and the Court must decide in the absence of such a title then the federal interests are stronger and would prevail.

He disclaims as I understood in many argument that the federal interest would require overriding in a historic title because the shelf is in necessary appurtenance of federal constitutional powers.

This fights in the face however of his other argument that even if the states had in historic title at the ratification of the Constitution they then lost it.

They would lose it surely only if it was necessary for the federal government to have it, to protect its constitutional interest.

And if it is thus necessary, how can Congress give it away.

The Solicitor General, I submit cannot have it at both ways.

If Congress was free to give part of the shelf to the states in 1953, then shelf ownership is not necessary to federal powers as he admits, and since it is not necessary then the Constitution would not have taken on historic state title away.

Chief Justice Warren E. Burger: This, in your view then it is not within the power of the sovereign to decide in what particular instances it might be necessary and in other instances that it could be yielded in part that that is not within the broad sovereign power.

Mr. Brice M. Clagett: Not in the event of an antecedent historic title Mr. Chief Justice.

It seems to me that a title to property which was vested in a state before and at the time of the revolution could only be taken if there were some constitutional necessity for taking it.

Chief Justice Warren E. Burger: But Congress in passing that Act assumed and of course acted on the assumption that it had the title, did it not?

Mr. Brice M. Clagett: Yes, Your Honor and that's precisely why the Act has to be unconstitutional if Congress was wrong on that point.

There's no dispute here as I understand it that if the states did have a vested title and property then the Outer Continental Shelf Act is unconstitutional.

I take it the point concedes that.

I might add that the Congress did its best to restore to the states all the title which it was then aware that the states had.

Probably, because no valuable resources as of that time had been discovered in the Atlantic Ocean, nobody done his homework and nobody knew what the history was and the states were not then articulating their claim very well.

So, Congress passed that Act under a misapprehension.

It intended to and it thought it was restoring to the states all the title they had.

Justice Potter Stewart: Which Act, the Outer Continental Shelf Act?

Mr. Brice M. Clagett: These are the -- both Acts taken together.

Justice Potter Stewart: Both Acts taken together?

Mr. Brice M. Clagett: Yes.

Justice Potter Stewart: Right.

Mr. Brice M. Clagett: I would add that there is no need for you to overrule the holding of California in order to decide for the states here.

That holding of course was the California did not own the three-mile belt.

If you hold in our favor on the basis of an historic title, then that holding would not apply to any state which might California lack such a title.

To be sure, California and other states might renew their claim but the "equal footing" doctrine would require them to have the same amount of shelf as the Atlantic states.

But the Court could well hold as it did in Alabama versus Texas quite clearly that the "equal footing" doctrine requires nothing of the kind.

It does not require that every state own an equal amount of Continental Shelf any more that it requires that every state have its large of land territory as the State of Texas and the State of Alaska.

I think I fail to make myself altogether clear yesterday as to the circumstances in which if the Court should decide in our favor, federal intervention in the shelf would require compensation to the states and the circumstances in which it would not.

Now as I see at three possible situations.

One, the federal government takes oil or there shelf resources owned by the states for its own use.

That plainly would be a taking and would require compensation.

Two, the federal government by treaty agrees with other nations that the Continental Shelf under exclusive American ownership is not as large as it is now considered to be.

Thereby, cutting of state ownership as to some parts of it that would a federal act to adjusting boundaries or settling international law in the exercise of the foreign affairs power.

It would not in my submission be a taking and it would not require compensation.

I might add that the question of that question is wholly academic at least as to the foreseeable future because the whole tendency in international law and policy at the moment is to expand Continental Shelf rights not to cut them back.

Three, the federal government in the interest either of national defense or for economic reasons tells the states that they must develop shelf resources faster or differently from what they are doing.

The state’s retaining ownership and still receiving the revenues that would not be a taking quite clearly and would not require compensation anymore for example; than federal resource allocation during World War II did or any of the other kinds of paramount power that the federal government habitually assert especially in times of national emergency overall the resources of the country.

It would be perfectly proper federal regulation thus a decision for the states here will in no way retire or hamper Continental Shelf exploitation or development if the national interest is found to require that.

Next, as to the Solicitor General's argument that the states never acquired any property interest in the shelf, it is hard to respond to this because it was stated almost entirely in conclusory terms without reasons or facts.

The Solicitor General did make one specific statement however.

He said that the hundred-mile rule was recognized on only two occasions by -- and the Earl of Salisbury to the contrary.

The hundred-mile rule was declared by among others the following eminent British authorities: William Welwood in 1613, Gerald Malynes in 1622, Thomas Neal in 1704, Sir Charles Hedges, Admiralty Judge and Secretary of State, in a formal legal opinion of 1713, and Josiah Burchett, Secretary of the Admiralty in 1720.

Further proof is found in the Colonial Charters themselves beginning with the Charter of 1606 which created a hundred-mile territorial sea all up and down the coast of these very defendant states.

As shown in our supplemental brief in detail and addition the overwhelming consensus of international law authority throughout the 17th and 18th centuries was in favor a hundred-mile territorial sea.

Finally and perhaps conclusively, 13 leagues which is virtually identical to a hundred miles was the boundary asserted and enforced by Britain throughout the 17th and 18th centuries for its territorial sea and exclusive fishing rights in these very waters here under dispute in North America.

As to -- that boundary was incorporated into the Treaty of Utrecht in 1713.

But Britain regarded the 13 leagues applicable all up and down the coast of these states as well.

The proof is our exhibit 327, in map volume 3 of our appendix which is the British copy the very -- British map used in the Peace Negotiations of Paris in 1782-83.

That map shows the 13-league boundary drawn all the way down the coast of these defendants' states.

I can only -- I have no time to discuss the Solicitor General's assertions about the Australia and Canadian cases.

I can only say that we submit they are widely inaccurate.

I can only beg to the Court to study pages 477 through 85 of our supplemental brief on that subject.

Next, the Solicitor General contends its federal government would've succeeded to any Continental Shelf rights than in existence at independents or sometime around there.

I can confess as I heard the Solicitor General was eloquent about the sovereignty of the First Continental Congress.

I was wondering why we were not celebrating the bicentennial this year instead of waiting for some later wholly ancillary event.

On the point of whether the states were ever fully sovereign, the key to understanding the events of that period we submit is that the states were regarded as identical to the United States not the United States being a distinct and separate national government in any sense.

It was the United States of New Hampshire of Massachusetts, etcetera.

The term was always spelled out in full in that fashion.

Of course the states carried on foreign relations not only separately which they did to a quite considerable extent but primarily through their joint representatives.

Congress was the states.

Congress was made up of ambassadors from the states known as congressman.

Every treaty that Congress made was made in the name of each one of the states enumerated separately.

The nature of the confederation was exactly what the articles of confederation and carefully chosen language said it was a firm league of friendship.

And it was universally recognized that the federal league or confederation was a group of several sovereign states which retain their full individual sovereignty that tell in -- who the international lawyers best known to the founding fathers expressly so stated.

Chief Justice Marshall agreed as I have mentioned yesterday in Gibbons versus Ogden.

He declared that the states "were sovereign, were completely independent and were connected with each other only by a league."

There's nothing to the contrary in Penhallow versus Doane which merely holds that Congress had the power to erect an admiralty court with appellate jurisdiction from the state highest courts for the reason that the states and in particular New Hampshire, the state which was there contesting it had consented to it.

There's not a word in the case of any inherent federal sovereignty derived from the crown or if any federal powers other than those granted by the states.

Justice Potter Stewart: There is something to the contrary in the Curtiss-Wright opinion?

Mr. Brice M. Clagett: Yes, indeed, there is Your Honor.

Justice Potter Stewart: Do you think that's wrong? You too?

Mr. Brice M. Clagett: Yes, sir.

And of course it purports to cite Penhallow but as Julius Goebel said in his first volume of the history of this Court some slightly sloppy language in Penhallow was then used Curtiss-Wright to support, I forgot the exact words in utterly inadmissible version of historical events.

Even if the Solicitor General were right about sovereignty, even if he were right which he isn't, the historical record and the decisions of this Court show beyond any question whatever that the United States was never regarded as acquiring any territory or property other than in right of one of the individual's states and nothing was ceded to the federal government but what was expressly ceded.

The Constitution draws the sharpest possible distinction between the territory and property of the states which remain intact and the paramount rights of the federal government which were superimposed upon them, the ratification of the constitution transferred no territory and no property.

Finally, as to the Solicitor General's claim that our Continental Shelf rights were destroyed by the three-mile limit.

Our briefs and the testimony at the trial particularly that of Judge Philip Gesoff who is the world’s leading authority on the subject proved beyond the shadow of the doubt, that the Solicitor General’s argument is wrong.

The three-mile limit applied only to surface waters never to the seabed.

As this Court itself said in the second Louisiana case, maritime boundaries to different distances are recognized for different purposes.

The United States never construed the three-mile limit as cutting off seabed rights.

Wholly to the contrary in the bearing sea arbitration, the United States took it is a fundamental principle that the three-mile limit had no application to seabed rights.

And the United States like every other nation asserted exclusive ownership of seabed resources beyond three miles wherever they existed and were exploitable as in the case of the Philippine Pearl Fisheries.

Justice Potter Stewart: When was the three-mile limit association?

Mr. Brice M. Clagett: The three-mile limit was first mentioned by anyone as a boundary for neutrality purposes only by Thomas Jefferson in his letters to the ambassadors within in a year or two of 1790 and 1791.

It was never applied to anything more than neutrality purposes for some decades thereafter and it was never applied to the seabed.

Finally, I must say that we would of course like the opportunity to respond to whatever the Solicitor General may say about further proceedings on this paper he was going to file.

We would therefore ask the Court to set a short time limit for his paper and one for our response.

Chief Justice Warren E. Burger: Thank you Mr. Clagett.

When the Solicitor General and if he files a further proceedings, you'll have 10 days to respond to it.

Chief Justice Warren E. Burger: We'll hear arguments next in number 35, original, United States against the State of Maine.

Mr. Clagett, you may proceed whenever you're ready.

Mr. Brice M. Clagett: Mr. Chief Justice and may it please the Court.

The question before the Court this afternoon is related to with a great deal broader than the question you heard this morning.

The question this afternoon is whether it is the plaintiff, the United States or the 12 defendant states which own the natural resources of the Outer Continental Shelf in the Atlantic Ocean beyond internal waters, beyond territorial waters.

The case presents three issues.

First, do these courts California and subsequent opinions require a decision in favor of the plaintiff?

Only without regard to the massive evidence produced at the trial.

Second, assuming as we deny that Continental Shelf Rights first came into existence by virtue of the Truman Proclamation in 1945, did those rights arise in favor of the states or of the federal government.

Third, if the Court holds in favor of the states that federal ownership is not required by California, but rejects the states' argument that any Continental Shelf rights arising in 1945 would have arisen in their favor then the question becomes whether the states have made out their claim to the resources on the basis of a historic title.

The first question then is whether the California line of cases compels a decision in favor or the plaintiff.

We think the very fact that this Court referred the case to a Special Master in the face of the United States' argument that the result was pre-ordained by California strongly indicated that this Court wish the issues to be examined on their merits and not decided by an automatic application of precedent.

Nonetheless, the Master believe himself obligated to grant the plaintiff's original motion for judgment on the pleadings by applying what he believe to be the California doctrines.

There are a number of important distinctions between this case and California and we submit California stands for somewhat less than as usually alleged.

The contention which the Court there decline to accept was that the original Atlantic States had held prior to the revolution a uniform three-mile belt of territorial waters, a contention which is very different from the contention the states made here.

In California, the Court looked into that contention that there was a three-mile belt prior to the revolution and found quite correctly that no one had ever heard or a three-mile limit or a three-mile belt prior to the revolution.

Since that was the only contention that had been made to the Court, the Court quite naturally held that the contention had not been established and that California has not proved its case.

Even as to that contention, the Court said only that on the basis of the materials that had then been furnished, it could not say that pre-independence, colonial ownership of a three-mile belt had been made out.

It's notable also that Massachusetts one of the defendant states before you today suddenly you have to intervene in the California case.

The Court denied intervention.

That denial was presumably on the ground which the plaintiff both there and here had urged to the court that “Massachusetts cannot be affected by any judgment which may be entered in this suit.”

It's unclear perhaps, also whether the California Court believed that the federal interest in the shelf which it described would prevail even over an established state historic title or whether the Court merely believed that those federal interest would established federal ownership in the absence of a historic title on behalf of anyone.

The Court never reached the former question whether the federal interest would defeat an established state title because it held that the evidence put forward had not established any state title.

And finally, as I will argue in a few moments in detail, developments have occurred since the California decision both congressional action and subsequent decisions of this Court which decisively undercut the California rational.

In this circumstances, it is wholly understandable I think that when this case was brought, raising for the first time directly with the appropriate parties before you whether the Atlantic Coastal States on their Continental Shelf beyond the three-mile limit or not.

The Court would wish to consider the issue as a new matter and on the basis of a complete record.

That record has now been made.

It's idle perhaps to debate where there some or much or most of the material now of record was before you in California.

I can assure the Court with confidence that a comparison of the record in the two cases will leave no doubt that the present record is immensely superior.

Not only in the volume, the scope, the completeness of the material of the primary materials but in the depth and sophistication with which the bare bones of those primary materials have been analyzed.

In the previous cases, only those bare bones were before you and none of those cases was there any reference to a Master.

There were no trials.

The cases were decided on the bare pleadings.

Our record aside from a great wealth of documentary evidence contains analysis by 10 expert witnesses and extensive cross-examination of them.

The plaintiff appears to think less of its expert witnesses than we do of ours when it argues that little of significance is now before the Court that was not before it in California.

One would think given the extreme complexity of the questions of history, legal history, phonology, international law, international legal history and related subjects.

One would expect the plaintiff to believe as we do that analysis by qualified scholars in the relevant fields would be of great assistance if not essential to the court.

One reason why the plaintiff apparently thinks otherwise is that its own expert witnesses ended up agreeing with the defendant's position on many if not most of the relevant issues of fact and law.

I shall be referring to these concessions with some frequency during the course of this argument and I would suggest that in all the record that is before you today, both the original, unprinted record of which that is but part and the printed record perhaps the most important part is the last 15 or 20 pages of volume 1 of our appendix from about 500 -- page 528 through to the end 558, 30 pages and I would urge you to read those pages over and over again because they contain the most crucial of the many concessions made by plaintiff's witnesses in the course of cross-examination.

Beyond any comparison of records, this would seem in every respect a case where the Court would deem it appropriate to take a fresh look unfettered even by any presumption arising from its past decisions.

Justice Potter Stewart: Beginning with the cross-examination of Mr. Cavignon?

Mr. Brice M. Clagett: Mr. Cavignon, yes, sir.

Stare decisis is readily overcome in matters of transcendent public and constitutional imports which this case surely is.

California itself overruled many previous decisions of this Court which it affirms state ownership of land under navigable waters whether inland or not.

Let us then consider the issue on it s merits.

The states claim they have an historic title to these Continental Shelf resources.

The plaintiff while contesting our version of the history primarily argues that it is all irrelevant.

The Continental Shelf plaintiff says it belongs to the federal government as a corollary of its external sovereignty thus plaintiff claims even if the states would otherwise have perfect title to the Continental Shelf, it has been stripped from them by the Constitution's vesting of external sovereignty in the federal government.

That phrase external sovereignty doesn't appear anywhere in the Constitution, it's the jargon that's generally used to indicate the fact that it is the federal government and not the states individually which is an international person, a nation recognized by the world community as an equal member of the family of nations with rights and responsibilities under international law.

But it in no way follows from the external sovereignty we submit that the United States as distinct from the individual states owns or must own these Continental Shelf resources.

International law has nothing to say one or the other about the ownership of Continental Shelf resources as between the states and the federal government or about similar issues in any other federal system.

As an international matter, it's the United States not the states as distinguished -- the United States is distinguished from other nations which owns these resources.

But it's only compatible with international law and with the plaintiff's status his external sovereign for the states to own these resources as a matter of our own law.

I won't dwell on this point because plaintiff's international law witness Professor Henkin conceded it and I don't understand the plaintiff to be seriously contesting it.

Thought there's a passage on page 55 of the plaintiff's brief which suggest that possibly it may still be contesting it.

There's nothing in the nature of external sovereignty which requires that in a federal system of government, that entity which possesses external sovereignty be also the same entity which owns Continental Shelf resources.

The constitutional law of the federal system may determine that question anyway it wishes.

This Court expressly and clearly so held in the second Louisiana case in 1960.

There's no magic in the fact that these resources right outside our national boundaries which means that the external sovereign has to own them.

Plaintiff's argument that there is, I've never been able to understand except as a sort of superficial play of words on the word externally, it's outside therefore of the federal government must know it.

There's nothing to it.

One illustration that was used at the trial to expose this was a hypothetical parcel of land in Virginia -- excuse me, a hypothetical parcel of land in England which Virginia owned for the revolution, the colony of Virginia.

Plaintiff's witness conceded these concessions of page 543 of the appendix that Virginia would have retained that land once the federal government became the external sovereign whenever that was.

No magic would have cause title to passed.

The situation is no different in any respect with regard to the Continental Shelf rights at issue here we submit.

When plaintiff's argument is analyzed it appears that what plaintiff is really claiming is not plaintiff's bare status is external sovereign gives at this resource.

Plaintiff's real argument is that certain powers vested in the federal government by the Constitution the foreign affairs power, the defense power, the power of a foreign commerce cannot properly be conducted without federal ownership of the Continental Shelf.

Therefore, plaintiff argues by vesting those powers in the federal government, the Constitution necessarily transferred ownership from the states to the federal government assuming of course that the states had owned them before.

Plaintiff is rather cautious about making this argument rather indirect about it for excellent reasons as I think we'll see in a moment.

But if that is not plaintiff's argument, if that is not the guts and gist of it, then I am wholly at a lost to understand what plaintiff's argument is.

When the argument is submitted to scrutiny, it is seemed to be mirage wholly the void of substance.

Plainly, the federal government's foreign affairs defense on foreign commerce powers are both broad and paramount.

They override any competing state interests but these powers no more require federal ownership of the Continental Shelf resources at issue here than they require federal ownership of all the land or all the minerals in the land territory of the United States.

Where the federal government also has both those and other broad and paramount constitutional powers.

Let us take the foreign affairs power first.

The plaintiff has failed to give any illustration whatever of any way in which that power could possibly be hindered or embarrassed by state ownership of Continental Shelf resources.

No one questions that the federal government has the power by treaty with other nations or otherwise to define the outer extent of the Continental Shelf which is under our exclusive national ownership.

If there were previous state rights out there, the federal government could cut them off by treaty or otherwise and the pursuit of the foreign affairs power.

By the Continental Shelf Convention of 1958 in agreement with other nations the federal government did precisely that no one doubts that that was a proper exercise of the foreign affairs power.

Justice William H. Rehnquist: You say that even though property rights may have existed outside the three-mile limit, the federal government and its foreign affairs power can cut them off?

Mr. Brice M. Clagett: Yes, Mr. Justice Rehnquist, unquestionably.

Justice William H. Rehnquist: Will they have to pay compensation?

Mr. Brice M. Clagett: If it took them in the course of a genuine foreign relations settlement with other nations, I would say no.

If it was done in the exercise of the foreign affairs power, I would analogize it to a boundary settlement which would not require compensation.

If the alleged, if the treaty were nothing but a camouflage, if what was really being done was that the federal government wanted to cut those state rights off for non-legitimate foreign affairs purposes then I would say yes.

Similarly, under the doctrine of Missouri versus Holland, the federal government made by treaty accept international regulation of Continental Shelf activity for foreign policy ends.

Such regulation would bind the states and would supersede any contrary state law.

If any state or state license exportation of shelf resources interfered with the right of free navigation over the super adjacent eaters which international law establishes then the federal government would have both the duty under the national law and the right under our own law to stop that interference.

Since 1953, the states have admittedly owned seabed resources out for three miles and indeed out to 10 miles in the case of some of the Gulf States.

No one claims that state ownership and exploitation of these resources has presented any international embarrassment whatsoever or any foreign policy complication or problem.

Plaintiff's international law witness Professor Henkin conceded that no such problems had arisen.

That concession by an oversight, we didn't put in our printed appendix.

It's on page 2647 of the transcript.

The defense power likewise has nothing to do with ownership of Continental Shelf resources.

The United States can defend and has defended the land territory of the United States without owning all the land in the country.

Why is the Continental Shelf one with different?

Plaintiff has suggested no reason.

Plaintiff's bare assertion that that there is a difference is particularly impossible when it is remembered that the States here are claiming only the resources of the seabed.

They make no claim to the waters above.

If it be said that the defense power may require the exercise of federal control over these resources.

For example, to ensure they are more rapid and defective exploitation in time of national emergency or war, no one can doubt that defense power permits precisely that just as it permit similar control over the resources natural and human of the entire country.

No one has ever proposed that the defense power requires federal ownership of everything in the country.

Unchallenged testimony before the Master described how the federal government is readily able to marshal and direct all the resources of the nation whenever that attempts necessary.

The same is true of the power over foreign commerce.

If the federal government decides that the energy crisis or some other economic factor requires that Continental Shelf resources be developed at a different pace, or in a different manner from what the states are doing.

The federal government plainly has the constitutional power to exercise all the control necessary to achieve that end.

I want to emphasize this point, it's critical because of fears expressed in some quarters of the states because of environmental concerns or parochial pressures of one sort or another might retire or impede Continental Shelf development to the detriment of the national interest.

As I shall argue in a moment, the states have important legitimate interest in what happens of their shores which can be implemented only through ownership of these resources.

But if the federal government found and I repeat that the national interest required overriding those state concerns and developing shelf resources faster or differently than the states are willing to permit.

It is beyond question that the federal government could validly still act.

Justice William H. Rehnquist: Would the federal government have more authority over the shelf resources than it would over land resources that were the property of the states?

Mr. Brice M. Clagett: That would depend on whether the particular purpose involved the shelf resources more than it all planned.

I think there's no question that if a state owned the uranium on land, and the state refused to exploit it and the federal government needed it for the national defense or whatever, that of course the federal government could require a development of that mine.

Chief Justice Warren E. Burger: With or without the compensation?

Mr. Brice M. Clagett: I would say without compensation if it were the state that was getting the revenues from it.

In other words, of course it could be taken by the eminent domain power but the Government short of taking it could say we will require that it be developed.

You will get the revenues.

You're getting more money than you got before.

Of course no compensation is due.

Nothing has been taken.

It's simply a regulatory measure requiring a different manner of development from what the state would have chosen on its own in order to accomplish some overriding national purpose.

Chief Justice Warren E. Burger: Is that not a rather unique form of ownership if that's the right term?

If it's subject to those burdens?

Mr. Brice M. Clagett: I would submit Mr. Chief Justice that it is precisely the same form of ownership that every acre, every building, every car, every tank, every truck in the country is subject to it.

And again, I cite the case of the hypothetical state-owned uranium.

This is no different from anything else.

I think there's nothing whatever that's unique about it.

The fundamental form then in our submission in the plaintiff's argument is to assume that there is something special or unique about the Continental Shelf which means contrary to the situation, everywhere else that the exercise of constitutional power there requires ownership and property.

The plaintiff has steadfastly declined to tell us what that difference is and in fact there is none.

As Mr. Justice Reed said dissenting in the California case, state ownership “would not interfere in any way with the needs or rights of the United States in war or peace.”

The power of the United States is plenary over this undersea lands precisely, as it is over every river, farm, mine, and factory of the United States.”

Justice Frankfurter's dissenting opinion was precisely to the same effect on that subject.

An argument similar to the plaintiff's argument here was made in United States versus Bevans decided in 1818.

There the federal government argued that territorial sovereignty over the waters of Massachusetts Bay had been transferred from Massachusetts to the United States by virtue of the federal constitutional admiralty jurisdiction.

The Court in an opinion by Chief Justice Marshall said that it was incapable of feeling any doubt that this argument was wholly spurious.

The Court made a sharp distinction between the paramount federal powers on the one hand and the residual jurisdiction of the waters in the state.

The Chief Justice said that subject to the federal power, that jurisdiction adheres to the territory as a portion of sovereignty not yet given away.

The holding in Bevans was followed in McCready versus Virginia and Smith versus Maryland and in 1890 in Manchester versus Massachusetts.

We submit that this line of cases is plainly correct.

The Chief Justice's analysis applies just as much to the foreign affairs, the defense, and the commerce powers as it does to the admiralty jurisdiction.

All these federal powers are paramount on properly invoked over every state law right or title.

But every one of those federal powers co-exist with and is fully compatible with the existence and boundaries of state territory with state property rights and with the residual sovereignty of the states.

That I submit is what our federal system is all about.

It's just as applicable to the Continental Shelf as it is anywhere else.

The Constitution itself, we think, makes this abundantly clear.

Article IV, Section 3, Clause 2 provides that nothing in the Constitution shall be so construed as to prejudice.

Any claims of the United States or of any particular state.

The history of this clause makes it clear that the claims referred to were claims to territory and to property.

The clause arose out of the Western line's controversy during the revolution and confederation periods in which the states which marked Western Lands vigorously sought to appropriate those of the other states without their consent for the union as a whole.

That attempt was repeatedly and unambiguously rejected.

While eventually some of the Western Lands were voluntarily ceded by the states, some of them not all, this Court has repeatedly held that the federal title to those lands was derived solely from those voluntary acts of the session, and was subject to the conditions, the very substantial conditions in some instances which the states had articulated in the instruments of the session.

This was fully and universally understood with reference to all navigable waters and the land underlying them from the beginning of the union down to the California decision in 1945.

Every court decision, every commentator, every score, took it as unquestionable that the states retained whatever territorial and property rights the antecedent colonies or the crown had had before the revolution.

Over waters and submerged lands just as over dry land, subject always to the fed -- paramount federal powers conferred by the Constitution.

The majority opinion of course in California itself admitted if a bit grudgingly that this had been the uniform prior understanding with respect to offshore waters and their subsoil just as much as with respect to land territory and internal waters.

That admission was well taken.

If by deciding in favor of the states today, the court believes it must overrule California and that is by no means necessary clear.

It would then be returning to a much older and to much sounder doctrine reflected in Pollard's lessee versus Hagan, Martin versus Waddell, Manchester versus Massachusetts, United States versus Bevans, Smith versus Maryland, McCready versus Virginia, and literally, a host of other cases.

The alleged California doctrine is an aberration.

We very much hope a temporary one.

The events that occurred after the California line of cases, confirmed what I have said thus far.

These events indeed fatally undermine the authority of California, if that decision held that the federal government owns Continental Shelf resources as coronary of external sovereignty or of the foreign affairs defense and commerce powers.

The legislation of 1953, the Submerged Lands Act and the Outer Continental Shelf Act, restored to the states the seabed resources under the three-mile belt which the California decision had appeared to take from.

In the case of the states bordering the Gulf of Mexico, of course, Congress allowed the coastal states to recover their resources out to 10 miles if they could prove historic boundaries out that far.

Justice Potter Stewart: Now, we're talking about nautical miles are only true here, are we?

Mr. Brice M. Clagett: Nine nautical miles.

Justice Potter Stewart: As versus three nautical miles.

Mr. Brice M. Clagett: Yes, Your Honor.

Justice Potter Stewart: So, it's never 10 miles?

Mr. Brice M. Clagett: I'm afraid I've used that as a shorthand and you're quite right sir, that it's inaccurate.

The legislative history makes it abundantly clear that Congress regarded the California decision as wholly wrong and that it believed it was restoring to the states rights they'd always had until California appropriated them to the federal government.

How was such a restoration possible if federal external sovereignty or federal constitutional powers required federal ownership?

The argument that it was not possible based on precisely the grounds intermitted by the California majority was pressed on Congress for strenuously.

But Congress rejected that argument.

Its rejection perhaps is not of constitutional significance.

But it is of course a very great constitutional significance that this Court ratified Congress' view.

In the second round of the Gulf States litigation, Texas inferred a claim to historic boundaries out to three leagues.

The federal government argued there just as it argues here with equal vehemence that such boundaries, such continental shelf ownership could not be recognized even in spite of the statute without doing violence to federal external sovereignty to the foreign affairs and defense powers and to the three-mile limit.

This Court rejected that argument and accepted Congress' judgment that it was perfectly possible for the states to own Continental Shelf resources both within and beyond the three-mile limit without doing any violence to federal powers or prerogatives.

The plaintiff argues that in the second Gulf litigation, this Court never said it was repudiating the California rational and indeed that there is language in the opinions that seems to reaffirm California.

That is true but it is equally true we submit that the California doctrine cannot co-exist with the later doctrine of the second Gulf litigation.

If the federal government owns sub-c resources as a corollary of external sovereignty or a corollary of the fund affairs and defense powers as California seem to suggest.

Then how could this Court countenance alienation of those necessary national rights by act of Congress.

Such an alienation would be just as invalid on the California theory as if Congress had passed the law advocating the function of ratifying treaties for example to a Committee of the State Governors.

Further proof, of the repudiation of California by subsequent events, is found in Alabama versus Texas decided in 1954, the year after the Submerged Lands Act was passed.

This Court in the brief per curiam opinion upheld the Constitutionality of the Submerged Lands Act by even refusing to allow a complaint to be filed challenging it.

The most interesting fact about Alabama versus Texas, I submit is that Justice Black, the author of the California opinion, vehemently dissented on the ground that the 1953 Legislation did appear to be inconsistent with California's rational that federal ownership was essential for federal external sovereignty and constitutional powers.

The legislation Justice Black declared and I quote “raise serious and difficult questions with respect to the authority of Congress to relinquish elements of national sovereignty over the ocean.”

I submit that Justice Black was wholly correct in perceiving that his California opinion and the Submerged Lands Act could not both stand.

By upholding the Act, this Court necessarily rejected the California rational.

In view of this history, we submit that stare decisis works more in our favor than in favor of the plaintiff.

The California doctrine simply cannot co-exist with the rational and the result of litigation. Either California does not require federal ownership of the resources in question here.

Or if it does, it has been overruled.

I've talked a great deal about federal interests which supposedly require federal ownership of the Continental Shelf.

I hope I have shown that they require nothing of the sort.

That should be enough to lead the Court to consider the states historic claims on their merits.

But in addition, the states have constitutional interests in these resources, interests which unlike the federal interests require ownership.

These state interests are described skillfully in the amicus brief of the Tidelands Committee of the National Association of Attorneys General.

I would draw the Court's attention also to a document called Outer Continental Shelf Oils and Gas Development and the Coastal Zone issued last November by a joint committee of Congress, the National Ocean Policy Study.

We've enlarge 10 copies of this with the Court and I see that it's been distributed.

This document is a more comprehensive indication than any I could give of the states real and practical interests in Continental Shelf resources and of the dilemma in which the states will find themselves if they are denied ownership of them.

Moreover, and this is a point not mentioned in our brief so I'd like to emphasize it.

While a decision in favor of the plaintiff would give it 100% of all the revenues to be derived from Continental Shelf exportation, the opposite is by no means true of a decision in favor of the states.

If state ownership is recognized, the federal government will remain free to tax the resources to be extracted both by means of income taxes on the lessees and on by any other type of tax plaintiff deserves such as for example the excise tax on domestic and continental shelf production recently proposed by the administration.

Section 638 of the Internal Revenue Code extends expressly the full federal taxing power to Outer Continental Shelf Resources.

Thus, the decision in favor of the states here will give the states indeed the royalties and the bonus payments from leasing.

But the federal government will have its full taxing power and could by adjustments of that taxing power effectuate virtually any apportionment of the total revenues of shelf exploitation which was found appropriate.

Thus, a decision in favor of the states here and only such a decision will permit a reasonable allocation of revenues between the states and the federal government.

A decision for the plaintiff, on the other hand will necessary give the plaintiff 100% and the states nothing.

Thus, only by deciding this case in favor of the states can this Court safeguard any of the very real state interest and concerns in the continental shelf.

The federal government already has its constitutional powers and its paramount control there including the taxing power.

If it is given ownership as well, it will have everything and the states will have nothing.

Only by recognizing state ownership can the legitimate state interests be protected and our dual system of government apply to this important national resource.

I have I hope dispose of the argument that the Constitution means that the federal government necessarily owns these resources.

I'm now almost ready to turn to the historic title on which the states primarily based their claim.

However, what I have said so far supports another, an independent basis for the states claim to ownership.

Since the Truman proclamation of 1945, and the Continental Shelf convention of 1958, no one disputes that as a matter of international law.

Every coastal nation owns its Continental Shelf resources as what the world court has called inherent or pertinence of its land territory.

Even if these resources were acquired for the first time in 1945 as plaintiff contends, they were not acquired as an independent or separable territory like the Louisiana Purchase or Alaska or some such acquisition.

They were acquired quite differently by what you might call a sort of legal accretion.

They follow from and they depended upon sovereignty over the adjacent coastline.

No one doubts for example that if the United States were to see the portion of its coastline to another country, the Continental Shelf adjoining that coastline would pass automatically to the new sovereign without any expressed reference in the act of session.

It is a coronary.

This is the first time the word coronary scrapped up where in our submission, it sound.

The Truman proclamation did not purport to claim the shelf on behalf of the federal government as against the states.

It carefully and explicitly left that question open.

We think that even if the states had had no historic title, to the resources and if property rights in them spring up ex (Inaudible) for the first time in 1945 as plaintiff contends under our constitutional system, they arose in favor of the states not of the federal government.

These rights as I've said appertain inherently to the sovereign of the adjacent coastline.

There's no dispute about that.

Who is the relevant sovereign?

In the case of this country, we have of course a divided sovereignty.

The federal government has delegated powers.

The states have the residuum.

That residuum includes normally the ownership of public lands.

And there is no dispute whatever that in the case of these original Atlantic States all public, ungranted lands belong to the state.

If the argument I made earlier is sound that the delegated federal powers do not require federal ownership of shelf resources, then it follows that the residual sovereignty of the states would attached to them.

Thus, the dual sovereignty of this country would simply expand outwards to embrace this allegedly new appurtenance when it was required by legal accretion or a change in the law on plaintiff's assumptions.

The delegated powers of the federal government would expand to embrace those resources, just as fully as they embraced the nation itself.

But the reserve powers, the residual sovereignty of the states would likewise and equally expand to embrace them also.

An ownership of ungranted lands or resources is plainly a part of that residual sovereignty, not a part of the delegated federal powers which entail paramountcy but not dominion.

The Master never even considered this argument because he believed himself precluded by California from doing so.

The plaintiff has not responded to it in anyway except to repeat that California in connotation.

We urge the Court that this case can and should be decided in favor of the defendant states on this ground without any necessity for examining the question of historic title at all.

Justice Byron R. White: In 1945 or whenever it was, that the United States claims it first acquired title or interest in the shelf.

What if the United States at the time had owned a hundred miles of the coastline just as, say it with 100 miles because the coastline was part of the public domain?

Let's just assume.

Mr. Brice M. Clagett: As a territory shall we say?

Justice Byron R. White: No, no, no just as part of the public demand.

And the United States just happen to own it, that's all.

It was within the state but it just happened to own 100 miles of the coastline.

Mr. Brice M. Clagett: As a private owner?

Justice Byron R. White: Yes.

Mr. Brice M. Clagett: Well, --

Justice Byron R. White: Why would the state acquire any interests in the shelf under your theory?

Mr. Brice M. Clagett: Well, I would --

Justice Byron R. White: Rather than a private owner?

Mr. Brice M. Clagett: I would say Mr. Justice White because these rights are on appurtenance not of private ownership but of sovereignty.

The private owner would not take them.

The sovereign would.

Here we have two sovereigns, the question is which?

Justice Byron R. White: So, your thought of conveying away part of the coastline is some other country?

Mr. Brice M. Clagett: Yes, that's what I meant.

Yes, sir.

Justice Byron R. White: You mean, it's just because it was a sovereign rather than a private owner?

Mr. Brice M. Clagett: Oh, Yes, that's clearly what the international law is.

If the United States ceded Maine to Canada tomorrow, and I hope my friend the Attorney General of Maine won't kill me after the argument.

Justice Byron R. White: Or the court of Canada?

Mr. Brice M. Clagett: Yes.

There's no question that if there were an active session doing that there wouldn't be any need to say we're also conveying the Continental Shelf.

It's never done.

It's never done with territorial waters either.

They go implicitly, automatically.

There appurtenances to the sovereignty of the adjacent coastline.

This is the --

Justice Byron R. White: At least you agreed it's not just an argument about property law but about sovereignty.

Mr. Brice M. Clagett: I do indeed, Your Honor.

Justice Byron R. White: Yes.

Chief Justice Warren E. Burger: And when you speak of sovereignty, I take it that you're referring to political sovereignty?

Sovereignty in the political sense.

Mr. Brice M. Clagett: That's the only kind that I'm aware of.

Chief Justice Warren E. Burger: Well, I just want to be sure that you can tell a special subdivision here.

Mr. Brice M. Clagett: No, sir.

Clearly these rights are coronary of sovereignty.

The question is which sovereignty there in themselves property rights.

But they go with sovereignty just as the ownership of ungranted lands in Virginia or any other of the states at the time of the revolution.

They belong to the Crown before that in the case of the Crown Colony like Virginia.

Chief Justice Warren E. Burger: On the 3rd of July 1776, they belonged on your thesis to the Crown, the British Crown.

Mr. Brice M. Clagett: Public lands in the territory of Virginia?

Chief Justice Warren E. Burger: Yes -- not opposed.

Mr. Brice M. Clagett: We're not talking about seabed rights now.

Chief Justice Warren E. Burger: I'm talking about the coastal land and whatever it is you say is appurtenant to it?

That was Crown dominion ownership?

Mr. Brice M. Clagett: Ungranted public lands in Virginia belonged to the Crown through its vehicle the colonial government of Virginia.

Ungranted lands in Maryland by contrast belong to the border of Baltimore as proprietor.

Chief Justice Warren E. Burger: On the 5th of July.

Mr. Brice M. Clagett: On the 5th of July, the State of Virginia and the State of Maryland owned those ungranted lands.

Justice Byron R. White: I take it, the point (Inaudible) no single state in the United States to get I mean, declaration before we entered prior to the (Inaudible)?

Mr. Brice M. Clagett: I find myself in the difficulty of being able to -- being asked to take plaintiff's hypothetical version of the fact seriously which I find it hard to do but --

Justice Byron R. White: I hope that you're suggesting (Inaudible)?

Mr. Brice M. Clagett: Yes.

Justice Byron R. White: Historically.

Mr. Brice M. Clagett: Yes.

Justice Byron R. White: You acquire it?

Mr. Brice M. Clagett: I would say --

Justice Byron R. White: Before anything, the question will be on your basis?

Mr. Brice M. Clagett: I would say Mr. Justice White that prior to 1945 or at anytime, since 1789, no state assertion of jurisdiction of title to these resources could be of effective without at least the tacit consent of the United States as external sovereign.

Justice Byron R. White: So it then requires the expression of the sovereignty of United States?

Mr. Brice M. Clagett: At least tacitly.

At least not in opposition.

Justice Byron R. White: (Inaudible)

Mr. Brice M. Clagett: Yes, Your Honor.

Justice Byron R. White: And -- but the only effective declaration in the United States is the best kind of the thing.

Mr. Brice M. Clagett: Yes, Your Honor.

Justice Byron R. White: Just separate places?

Mr. Brice M. Clagett: That's correct sir.

I turn now to the question of historic title.

The matter is necessarily complex.

It involves the law and practice of two countries and to some extent others over several centuries as well as international law, custom, and practice.

While the Master conceded some of the lengths in the states chain of title, he resolved other questions including the ultimate questions against us.

My discussion was will necessary be very brief.

I can only hope to touch on the few of the principle points in dispute.

We have tried in our printed papers to put the record before you and as clear and as useful fashion as possible.

We are confident that in immersion in this record will lead you to the conclusion that the plaintiff and the Master are just plain wrong.

In the first instance, the states historic claims rest on their colonial charters.

The typical charter in language grants, “All fishings, mines, and minerals, both within the same track of land upon the Maine and also within the said islands and seas adjoining.”

This language seems to us to be wholly categorical and ambiguous as showing that the mineral rights and the adjoining seas were granted.

Justice Harry A. Blackmun: Well, was that language also used in the Canadian Charters?

Mr. Brice M. Clagett: Yes, Your Honor.

Other language was also used in the Canadian Charters.

The language which the plaintiff concedes in the Canadian Charters did establish or grant the ownership of the seabed is the language all seas and islands within so many miles or so many leagues.

As I shall show in a moment, that language is in some of charters too.

Justice Harry A. Blackmun: Do you know why the distinction among the charters?

Mr. Brice M. Clagett: As I say, to some extent, there is not a distinction because that language is in some of our charters as well but the charters differ among themselves, there was no one set form apparently the Crown formulated what it wanted to grant a new each time.

Some of the charters seem to be based on each other.

But there are many variations that don't seem to have any particular significance of any reasons for them.

The language I just read you specifically for example was from the New England Charter 1620.

The second Virginia Charter of 69 says all, I'm paraphrasing now but this is the gist of it.

“All fishings, mines, and minerals, and other royalties within the said limits by sea and land, the language varies the intent and the gist and the result we think is the same.

The language I just mentioned, plaintiff and the Master don't even mention.

While they talk about the Charters, they talk only about other Charter language which is much less to the point.

Some of the Charters expressly mentioned all the seas and islands within specified distances from shore.

Plaintiff admits that that language created a territorial sea in the case of Canada.

But somehow fails to mention it when it analyzes the Charters in our states chain of title.

There is much other language in the charters which sheds additional light in which we think provides a clear answer to the question of how far out exclusive rights were asserted and granted in the American marginal seas.

The language I read you first from the New England Charter, we think beyond the doubt conveys fishings and minerals in the seas adjoining.

It does not equal weight expressly resolve the question how far out.

We have set forth in detail in our briefs and I won't go into unless there are questions or reasons for believing that in the legal context of the time and given the procession of the charters, the progression of them and given the contemporaneous interpretation of them as for example the interpretation during the 1620s by the Counsel for New England of its 1620 Charter which specified no outside limit but the counsel uniformly interpreted it as being hundred miles.

And is conveying the seas and islands not just the islands given all this and much other background that's recited in our briefs, and given also the fact that every charter expressly states that its provisions are to be construed in case of any ambiguity in the light most favorable to the grantee, which is not an ideal provision I submit.

We think that charters are clear.

The charter language must of course be read against --

Justice Potter Stewart: How many charters are we talking about?

Mr. Brice M. Clagett: Approximately for all the 12 states Your Honor, approximately 25 although most of the states had two or three charters.

Virginia had three, I think Maryland maybe the only state that only had one.

Justice Potter Stewart: Over, Over what period?

Mr. Brice M. Clagett: From 1606, the First Virginia Charter down through the Georgia Charter of 1730 something.

Justice Potter Stewart: So well over a hundred years.

Mr. Brice M. Clagett: Well, over a hundred years.

Justice Potter Stewart: Total?

Mr. Brice M. Clagett: Yes, Your Honor.

Justice Potter Stewart: Thank you.

Mr. Brice M. Clagett: Let me quickly summarize the States assertions about the historical background which we believe have been demonstrated beyond any question.

From a period long prior to and including the 17th and 18th centuries under English law, the Crown possess both sovereignty and dominion over the waters surrounding England which were known as the Four English Seas and their seabed.

That sovereignty and dominion included many rights among those rights was the exclusive right to export Continental Shelf Resources.

Justice William H. Rehnquist: When you say dominion, do you mean in the sense of property ownership?

Mr. Brice M. Clagett: Yes.

Yes, sir.

Justice Potter Stewart: Was that also just the de facto control of the British Navy?

Mr. Brice M. Clagett: No, Your Honor.

We think not.

There were many periods during this history when the British Navy was quite weak.

For example, some of King Charles' proclamations during the 1630s, said we need a large navy so we can go out and take or retake possession of this part of our sovereign territory of which unfortunately in part the Dutch are now in possession.

Before that time, for some years, the British Navy had not been very strong at all.

It was strong in Elizabeth's time but in the later years, of Elizabeth's reign and particularly under James that it declined very badly.

Justice Potter Stewart: James --

Mr. Brice M. Clagett: And yet it was --

Justice Potter Stewart: James the First?

Mr. Brice M. Clagett: Yes, sir.

Yet, it was James who perhaps took the English potentials to their highest pitch.

Justice Potter Stewart: During the reign of 1603 -- 1625, is that it?

Mr. Brice M. Clagett: Yes, sir.

The English Seas were defined uniformly regardless of what the State of the English Navy was as extending a hundred miles from sure or to the midpoint between England and the Office at Coast.

There were special exceptions to that such as the English Channel in the Bay of Biscay which were regarded as belonging entirely to England even beyond the midway line because the King of England claim to be the King of France.

England admitted those were French waters but French men English as far as the English crown was concerned.

After the American colonies were established, England sometimes took the view that the English seas embraced all the waters between the opposite coast of England in North America on the theory that whoever own two opposite coastlines owned all the water in between.

But the more general view was that that was unreasonable and that the colonies have their own hundred mile territorial seas with international waters lying in the middle of the ocean.

The doctrine of maritime sovereignty and dominion was naturally indeed inevitably extended to this side of the Atlantic and incorporated into the colonial charters.

The charters generally created territorial seas of a hundred miles in with in which the colonies own among other rights, the right involved here.

In a few cases, of specific charters, less than a hundred miles was granted.

Sometimes the patentee or the grantee was less in favor with the Crown than at other times and the Crown wanted to withhold some of that territorial sea for itself.

That mainly happened in New England during the later charters when the Crown was beginning to see that the puritans up there were not entirely friendly to Crown prerogatives.

So in the case of Maine and New Hampshire for example the Crown said alright we'll just give you five leagues and we'll keep the rest for our self.

Throughout the colonial period, the colonies exercise their rights in the marginal seas to the fullest extent practicable or necessary.

At the revolution, the states individual jury, inherited the rights of the colonies and also inherited whatever rights the Crown had retained in the motion to cease.

Thus, these states acquire the exclusive right if exportation.

That right has not been lost by any subsequent event or development.

It was not ceded to the United States or the Constitution.

It was not renounced to the world at large.

It was not lost through any changes in international law.

It remains intact.

Although the record, with respect to English law and practice goes back far behind the 17th century, that century is a particular importance for two reasons.

First out was the century when the defendant states were founded these English colonies and their charters were granted.

Second, the 17th is the century were all the parties before you and the Master are closest to agreement about English law and practice.

Although remain some differences between us, the Master acknowledged that by the middle of that century at any rate, English law fully recognized that the Crown own the resources of the seabed of the English seas and indeed on the seabed itself.

The plaintiff have dispute to that before the Master, but plaintiff witnesses largely conceded it.

In its brief to the Court, the plaintiff does not appear to dispute the point.

Certainly, plaintiff has not accepted from the Master's conclusion.

No one denies that during, throughout the 17th century, England was intensely concerned with rights in sea surrounding England including the seabed and that this concern and the Crown's high view of its own sovereignty and dominion in the seas were fully incorporated to law as well carried out in policy.

If there were any dispute, the record is massive conclusive.

This then is concededly the political and legal atmosphere in which the colonial charters of these defendant states were granted.

Now, the Master found that Crown ownership of the seabed became fully recognized in English law only towards the middle of the century with the publication of Selden's official work Mare Clausum in 1635 and Lord Hailes made us treat us.

The Master concluded that the doctrine does the states no good.

Since the earlier colonial charters antedated 1635.

There are several answers.

First, even if the Master were right, the change in the law which he thinks occurred about 1635 would have been applied on this side of the ocean as well as the other unless there were some good reasons for not so applying it.

No one has suggested such a reason.

Plaintiff's witness, Professor Morris admitted that there was no such reason, that's at page 538 of the appendix.

Second, almost every colony including those which had earlier charters also had subsequent charters issued between 1635 and 1700.

A period when the Master admits the doctrine of Crown ownership of the seabed was fully embodied in English law.

Third, the record proves that the Master wrong in his dating.

Maritime sovereignty and dominion which included the right here at issue, long preceded 1635 or even 1600.

At pages 64, 65 of our brief, we very shortly summarize the Court cases works for jurisprudence and state papers including things like acts of the king and counsel which plaintiff's witness admitted had full legal force which proved the law of the period 1600 to 1635.

Just for example in 1610 in highest court, preview counsel in the case of the royal fishery of the band held that the sea is of the legions of the king and is also his proper inheritance.

There is sovereignty.

There is dominion, legions, inheritance.

And therefore, the king shall have the land which is gained out of the sea.

It's his before so when it isn't sea anymore, it's still is his.

Robert Coles writing in 1622 repeatedly declared it to be the Law of England that the seabeds was the king's when it was covered with waters.

Selden's book itself was written by 1618 and was well known to the crown and the Government from that time forward.

As to the pre and post 17th century periods.

The Master in the plaintiff claim with English law allowed only for English jurisdiction in the English seas not for seabed ownership.

In fact there was evidence as far back as the 13th century both that seabed ownership was recognized and that the English seas were regarded as fully apart of the realm of England.

However, taking plaintiff in the Master on their own terms, what was the content of the jurisdiction which they more or less concede.

Plaintiff's witness, Professor Thorne admitted that that jurisdiction included the right to grant exclusive fisheries in the seas.

Such grants included sedentary that is seabed fisheries.

He also conceded that the jurisdiction included the right to tax sea fisheries.

Undisputed documents, the record show that the jurisdiction included the right both to define by statute and to punish in the courts crime at sea, and the right to regulate the time, manner, and extent of fishing for conservation and other purposes.

Plaintiff's brief at page 34 concedes that the jurisdiction included the power to regulate fisheries.

That power plainly extended to sedentary fisheries and other seabed resources as well.

And the power to regulate includes the power to license and to tax.

If plaintiff says that I misunderstood them, and thinking they're making these concessions that I've been too broad that they're not making them.

That they're retracting them and the fact is that the concessions whether they are still making them or not are utterly required by the record which is crystal clear on all these points.

Justice Potter Stewart: I'm not sure I understand what a sedentary fishery is?

Mr. Brice M. Clagett: Like oysters, Your Honor.

Non-mobile fish on the seabed.

Justice Potter Stewart: Fish?

Mr. Brice M. Clagett: Yes, fish.

Plainly then, even if the Crown had not been recognized as owning title to seabed land, the jurisdiction which by concession existed and which if not by concession certainly exist by the record embraced by the right to regulate, to license, and to tax the private exploitation of maritime resources both surface and seabed.

That of course is the precise right at issue in this case whether it is called jurisdiction, ownership, sovereignty or anything else is of no consequence.

This then is the background of English law necessary to understand what happened when the American colony is the predecessors of these defendant states were founded.

And as I've suggested, when you look at the colonial charters, you find precisely what you would expect to find in the light of that legal background.

The plaintiff and the Master have portrayed the 17th century English colonization of North America.

As fundamentally indifferent to maritime affairs and maritime resources nothing could possibly be farther from the truth.

From the very beginning of colonization in Elizabeth's reign, England's expansion into the new world focused largely if not primarily on control of the sea and exploitation of maritime resources, fish, pearls, and precious metals if they can be found.

The very first act of the English colonization in North America was the expulsion of fisherman of other nations from the New Finland Fisheries in 1582.

And when King James asked the pilgrims why they wanted to go to New England, they replied in one word “fishing.”

Every schools --

Justice William H. Rehnquist: Isn't freedom of religion, and was like fishing.

Mr. Brice M. Clagett: That's what they said when they were asked Mr. Justice Rehnquist.

Apparently, freedom of religion was something else.

Every school child knows how heavily colonization focused on precious things like gold, silver, and pearls.

Seventeenth century England as we have seen was in the highest degree contrast of the importance of exclusive rights of sovereignty and ownership in its waters.

And the very persons, the individuals most active in the chartering and founding of the American colonies were the same people responsible for maintaining English maritime sovereignty at home.

We've given a long list of them with short paragraphical descriptions.

Given this background, it is flatly incredible that English law did not extend to the American marginal seas.

The same principles of maritime sovereignty and dominion which were so fully established in English waters.

We have produced conclusive evidence of this is what did happen and what was recognized to happen.

England expressly claimed and exercised sovereignty and dominion in American waters on many occasions.

I pass over briefly the evidence demonstrating that throughout the colonial period, the colonies and the home government were intensely aware of maritime rights of sovereignty and ownership.

They exercised control over the American marginal seas as fully as was either necessary or appropriate in view of the limited opportunities for exportation which the technology of the time afforded.

In the nature of things that control was primarily directed to fisheries.

And the evidence is most extensive for the areas where the fisheries were richest and the thread of foreign incursion greatest.

That is the waters of Canada and Northern New England.

In those waters, there's no question that exclusive rights were claimed and foreigners were forcibly excluded.

Plaintiff concedes that as to Canadian waters.

There's no difference as far as Maine goes.

Similar issues rarely arose South of Boston where the fisheries were less reached and there were no nearby French bases from which forays could be attempted.

No one steep in this record I assert, Your Honors can doubt what position England would have taken if the French or anyone else had tried to come in.

Even if the plaintiff were correct, that to own the sea, you must occupy it.

These waters were in fact occupied by England and its colonies to the exclusion of others.

In its own brief to the Master, page 143, the plaintiff conceded that during this era, control of the adjacent land meant control of the fisheries.

The issue of course did not arise with specific reference to offshore mineral exploitation because no minerals were discovered during the colonial period which were susceptible of exploitation.

But the force and applicability of the law of a given period are not limited to the precise factual situations which arose.

Sometimes, it is possible to say with total confidence on the basis of evidence in hand, that if a particular situation had arisen, a particular known legal and political system would have reacted to it in a particular knowable way.

That is the situation here.

Suppose that at anytime, during the colonial period, a valuable pearl bed or gold deposit had been discovered on a shallow but submerged bed, bank or reef, say 10 miles off the coast of any of these defendant states.

Plaintiff's position requires it to argue that England and the adjacent colony would have asserted no exclusive right or with that pearl bed or gold mine but would have regarded the resources free to exportation by all the world.

That position defies both common sense and everything that we know about the law, attitude and practices of that period and of every period before and since.

Nations have never acted that way.

They have uniformly acted the opposite way.

All four of plaintiff's witnesses who testified on the colonial period conceded that in the circumstances I've suggested, the resource would have been claimed as an exclusive possession of the adjacent coastal sovereign.

Any foreign incursion would have been driven off.

The courts would have upheld that action as a legal right if anyone had challenged it which is unlikely.

We think these concessions by plaintiff's witnesses which the record requires are in themselves enough to make out the states case.

I now come to the period of the formation of the union.

I've touched on this in the earlier portion of the argument to the extent that Constitution and the western lands controversy are involved.

I shall only state our contentions in very summary form.

First, the historical record and the consistent decisions of this Court with the sole exception of the dicta in the Kurdish right case are overwhelmingly to the effect that prior to the Constitution that is from the beginning of the American revolution through the confederation period, the states were individually sovereign up to and including being international persons subjects of international law.

Chief Justice Marshall for example expressly so held in Gibbons versus Ogden in 1824, and there are many other cases which is cited in our briefs.

Second, be that as it may, each state was deemed to have succeeded to all the territorial and ownership rights of its predecessor colonial governments.

As defined by its charters and to all ownership rights pertaining thereto which prior to the revolution had been vested in the Crown.

It's hard to over emphasize the explicitness of the documents of record in showing how zealously the founding fathers guarded the territorial and property claims of each state individually, and how categorically they rested on the individual rights of succession by each state separately to its colonial charters and to the Crown prerogatives as continuing unimpaired.

This right then, this exclusive right to exploit shelf resources was one of the maritime rights which this defendant states had by virtue of English law and their charters long before the plaintiff here came into existence.

They have never lost it, it remains intact.

As to plaintiff's argument that the right was abandoned or destroyed by virtue of the three-mile limit, I will have to rest on our briefs because there is one final matter I need to mention.

That is the matter of possible further proceedings after the court decides this case whichever way the court decides certain questions will remain of the limiting boundaries or baselines with respect to specific maritime areas.

The case of course heard -- the Court of course heard the case presenting such an issue just this morning.

The plaintiff apparently, takes the view that a decree by this Court deciding the issues argued today and declaring in general terms that either the plaintiff or the defendants own the Outer Continental Shelf will terminate the case.

In its early pleadings, the plaintiff said that it sought only a decree which would settle the general issue “without determining the physical location of the area on the ground in any particular locality.”

Justice Byron R. White: What's that with the case in the event we decide for you?

So assume we overrule California?

Mr. Brice M. Clagett: If you decide from us -- for us, Your Honor.

There would be left the question first of lateral boundaries between the states and also the question of the outer boundary of the Outer Continental Shelf.

The dividing line would be between the rights of the states and the rights of the international community but it still might need to be adjudicated at some time.

There would still also, perhaps need to be decided even in that event Your Honor, the dividing line between internal and territorial waters not for purposes of this case but simply because national --

Justice Byron R. White: It's the other case not this one?

Mr. Brice M. Clagett: Yes.

Justice Potter Stewart: The last point has mis eluded me.

Mr. Brice M. Clagett: For the purposes of some other case not this case, there may need to be decided at some point the dividing lines between internal waters, territorial waters and the waters overlying the continental shelf simply because the rights of the states the federal government and the world that are different in each case wholly without regard to the right to exploit seabed resources.

The right of innocent passage for example.

Justice Potter Stewart: Well, various in other --

Mr. Brice M. Clagett: Yes.

Justice Potter Stewart: -- maritime commerce is the one.

Mr. Brice M. Clagett: Yes, sir.

We agree with plaintiff's position on this point.

While the Court's decision will leave certain specific question undecided, the appropriate forum for those questions we submit is the District Courts.

Under legislation enacted in 1972, the states can initiate quiet title proceedings against the federal government.

The United States has been able to do the same against the states for many years.

The federal government has chosen that route as you know to litigate the question of the waters of Alaska.

That case is now before you on certiorari.

Justice Harry A. Blackmun: Maybe they regret that route now.

Mr. Brice M. Clagett: I don't have to answer that.

Massachusetts --

Justice Harry A. Blackmun: While I have you interrupted, just assure me, Connecticut is not along your clients because it has no Atlantic Ocean coastline?

Mr. Brice M. Clagett: Connecticut is not among my clients Mr. Justice Blackmun because the United States didn't sue them.

Now, I would have to speculate as to why they didn't sue them but I suppose the theory was that they're cut off by Long Island and perhaps Long Island South.

I don't know whether that's accurate or not.

Justice Harry A. Blackmun: Of course the factor didn't vary.

Mr. Brice M. Clagett: Well, that is plainly true.

Massachusetts has now chosen the same route by seeking a District Court adjudication of the baseline defining its internal waters.

Others of the defendant states here are considering bringing similar actions.

The mutual availability of this route which was not the case until two years ago makes it unnecessary for this Court to retain jurisdiction as it did in prior cases to work out these questions of detail by itself.

We think the District Court proceedings are plainly of more appropriate forum to resolve by evidentiary trials these complex questions of geography and local history which perhaps you had your feel of already.

They are probably more expeditious forum also. Massachusetts has filed a reply brief discussing this matter in detail and I'm authorize to say that each of the other defendant states concurs in the position espouse by Massachusetts and adopts it as its own.

Thank you.

Chief Justice Warren E. Burger: Very well, Mr. Clagett.

Mr. Solicitor General.

Before you proceed, if I may have your ear Mr. Clagett, I overlooked announcing at the outset that Mr. Justice Marshall reserves the right to participate in this case on the basis of records and recording of the argument.

Argument of Robert H. Bork

Mr. Robert H. Bork: Mr. Chief Justice and may it please the Court.

The Government submits that the law in governing this case is clear and leaves in our opinion no room for doubt that United States has the paramount right to the natural resources of the Outer Continental Shelf under --

Justice Potter Stewart: Mr. Solicitor General, this is way out of order and -- but I was wondering while in it's my mind, do you agree with your brother on the other side as to further proceedings in this Court, no matter -- the further proceedings in this case no matter how this Court decides the present?

Mr. Robert H. Bork: If we might Mr. Justice Stewart, we would like to form that a position on that and submit it to the Court in the near future before this case is decided.

Justice Byron R. White: But for example Mr. Solicitor General, is there any baseline question on this?

If the federal government prevails here, are there baseline questions here?

Mr. Robert H. Bork: Well, there certainly will be questions about the lines in various areas, I'm not familiar with the questions --

Justice Byron R. White: As this case presented?

Mr. Robert H. Bork: Right now, this case is not presented.

But we are already discussing the ownership and but there will come problems of drawing --

Justice Potter Stewart: Drawing lines in the future?

Mr. Robert H. Bork: But this case does not present it at the present stage.

Justice Byron R. White: I now reach in this case, as the Special Master inquired on those issues if the federal government prevails, would you?

Mr. Robert H. Bork: Well, it may have to be determined somewhere and we would like you if we may to reserve the formulation on presentation of the position to this Court on whether it should go to the District Court to the Special Master.

We'll do that very shortly.

Justice Potter Stewart: Mr. Clagett specifically said that in his view, we should not retain jurisdiction of this case as we have in previous similar cases but that instead, this line drawing however it's the side of year could be carried out by the District Courts which jurisdictions since when 1972 was up, and you haven't --

Mr. Robert H. Bork: That is --

Justice Potter Stewart: You haven't been will take a position on that.

Mr. Robert H. Bork: That is correct.

Justice Potter Stewart: Thank you.

Mr. Robert H. Bork: As I was saying, I think the case law here is, the case law in the history is so clear that there is no doubt about the ownership of the Outer Continental Shelf and that it inheres the United States.

Now, defendants have an extended discussion of evidence asserted to establish English law in its application to this country.

I would point out that it's rebutted by our briefs.

It was decided against them by the Special Master's careful report but I think ultimately it can also be if the legal principles governing this case are applied that disputed by English law and so forth can be perceived as essentially irrelevant and not to obscure the legal principles that control this case.

Although we have no doubt that this Special Master's finding on English law and their application to this country are quite right.

As a matter of fact, he Special Master's Report shows and as the brief show the position of United States is supported by so many independent lines of arguments.

So many independent lines of law but there are some difficulty in choosing the parts distressed.

And I will here today urge briefly for propositions acceptance of any one of these propositions requires that judgment be entered for the United States.

For that reason, it is not necessary to review every factual finding made by the Special Master although as I say we believe them all clearly correct.

I will urge first that as the Special Master concluded the issue involved here has already been decided repeatedly in favor of the United States by this course in the California decision and Louisiana and the Texas cases.

Application of the doctrine of stare decisis is also in judgment for the United States.

Secondly, I would urge that the Special Master was correct in finding upon the record made that these states never acquired any property rights in the seabed of the Atlantic Coast, and certainly didn't retain in these such rights a historical record which establishes that the California decision was correct in the first place.

Thirdly, it is completely clear in any event than the Special Master so found that if there was any right in the colonies or in the English Crown to the Outer Continental Shelf which we deny.

That claim would have passed the United States at independence or upon ratification of the Constitution.

And finally, the Special Master also found and we believe correctly that even if it claimed to the Outer Continental Shelf once existed and somehow pass to the states instead of to the National Government.

The National Government constitutionally renounced the states claims when it adopted the three-mile limit which was its clear constitutional -- within its clear constitutional power.

The area was then reclaimed as against foreign nations in 1945 by President Truman's proclamation and as against the states by the Outer Continental Shelf Lands Act of 1953.

Anyone of these propositions as I say requires judgment of the United States and I think it's demonstrable that all four are correct.

The argument from stare decisis of course turns upon United States against California.

A suit by the United States invoking the original jurisdiction of this Court seeking ownership in the seabed in the three-mile belt adjacent to the coast of California.

California put an issue, the precise question involved here by defending on the claim, that the original 13 states had acquired rights in the seabed.

They said three miles at least in the seabed, it wasn't just a three-mile belt that they assert.

And on the Atlantic shore and that California acquired a corresponding property interest on the west coast because it was admitted to the union on equal footing.

This Court held California not entitled to the seabed on the ground that the original 13 colonies which includes all of the defendant states here Maine claiming through Massachusetts never acquired ownership in the three-mile belt.

Justice Black's opinion for the Court held that the federal government rather than the states have paramount sovereignty and as in instant to that full dominion of the resources of the soil under the water area including oil.

So that the precise legal principle involves here was decided in California.

It should also be said that Justice Black made the statement in California that history did not support the claim that there was any right to ownership of the seabed established in colonial days.

So, it is not a case decided as if the Court had no evidence of ownership and title before it.

The Court had many of these same documents before it and made a finding that state ownership had not been shown.

Now, nothing of course turns upon the fact that California involved the three-mile belt while this case concerns the Continental Shelf seaweed of the three-mile belt because of course in United States against Louisiana, the dispute was over at 27-mile area of the shore.

And this Court in an opinion by Mr. Justice Douglas said if as we held in California's case, the three-mile belt is in the domain of the nation, rather than that of separate states, it follows a fortiori that the ocean beyond that limit also east.

The ocean seaweed of the marginal belt is perhaps even more directly related to the national defense the conduct of the foreign affairs in world commerce than is the marginal sea certainly is not less so.

Now, that principle of course was applied in United States against Texas as well which was decided the same way as Louisiana.

I should pause here for a moment to say that, I think it is not correct as counsel for the defense states suggest that California was somehow in aberration in the law.

There was dictum in prior cases.

They would have suggested perhaps state ownership of close in waters but only dictums, the California court pointed out as there was those statements that were too broad, the case of the courts in those cases were dealing usually with inland waters.

And so that there was no law which California suddenly overturned.

Justice William H. Rehnquist: Mr. Solicitor General, what do you make of Justice Frankfurter's comment in the Texas case that in California, the Court did amend the proposed decree submitted by the Government to strike out the terms of proprietorship?

Mr. Robert H. Bork: I've been puzzling over that Mr. Justice Rehnquist because the decree gives dominion in full control and so forth that I think later decrees give proprietorship in this state cases.

And I'm not quite clear what the significance of that striking of those words is.

We have never quite to disturb what the significance was and I think later decrees do give propriety rights.

Now, these cases are well-established and there are two lines of attack that the defendants make upon them in an effort to get them overturned.

The first line of attack is that these cases have been repudiated by Congress in the Submerged Lands Act of 1953, and abandoned by this Court when it sustained the Submerged Lands Act.

I think there's nothing whatever in that notion.

Submerged Land Act and decisions under it far from repudiating California in the part of the other cases it's upon adopted and proceed from it.

The Act of course relinquished these very states, propriety rights within in the three-mile belt of the Atlantic Ocean but retained paramount federal powers, they defense commerce navigation and so forth, there's no mystery about that.

Congress ceded national property to the coastal states something it has a clear constitutional power to do under Article IV of the Constitution as this Court said in Alabama -- the Alabama litigation.

The defendant states attempt to make a repudiation of California by attributing to California a false rational.

A rational that does not I think bear.

They argue that California held that or at least that the Special Master thought it did that ownership of the seabed is unnecessary and indispensable and inseparable attribute a federal constitutional powers.

Hence, their separation by Congress agreed to this Court -- by this Court in Alabama against Texas necessarily repudiates the California rational.

It is clear of course that the Special Master did not read California that way although the States did urge that meeting upon them, now the they impute it to him, I guess for the purpose of importing into this Court's California opinion a meaning that could be said that it be repudiated by the Submerged Land Act.

But not a word in the California case or in the Special Master's Report states that ownership of land and governmental authority over it are constitutionally forever inseparable.

The Court was engaged in attempting to side ownership in an area between two contending governments and aside from the evidence of the governmental power over the area, there was no particular evidence of ownership in the usual sense by either Government.

The fact that one of the Government's had crucial governmental functions in the area, on the other hand, very few was reason enough to assign ownership to the former.

It would have been quite wrong for this Court to decide how much proprietary interest is essential to constitutional function and it refused it aside that in the California case.

That is a question for political authorities of the Government who have the constitutional authorities in questions to decide.

And in the Submerged Lands Act, the political authorities decided but the political authority, the Congress in this case also decided to accept the rational of California and the explicit statement of Louisiana that California's rational a fortiori applied further out to see because it enacted the Outer Continental Shelf Lands Act within three months of the Submerged Lands Act and expressly asserted federal ownership of resources in the seabed beyond the three-mile limit.

And that claim rest upon the rational of California, Louisiana and Texas.

It certainly does not repudiate it.

And to put the cap on it, this Court of course stated in the second Louisiana case that the act, the Submerged Land Act concededly did not impair the validity of California, Louisiana, and Texas cases.

And that those cases were noticed to all the coastal states.

Now defendant's second attack on this group of cases is to say that they were wrongly decided because there is no logical nexus between sovereignty and ownership.

In doing that, they adopt the stands of Justice Frankfurter's dissent in the California case, he assumed, indeed he must have found because he was willing to dismiss the bill without prejudice that California had not shown ownership.

But he argued that the United States had not shown ownership either, because he said imperium did not imply dominium.

In that situation, said Justice Frankfurter, the contested area is to be deemed unclaimed land and that determination to claim it on the party of United States is a political decision not for this Court.

And he went on, “I have no doubt that the President and the Congress between them could make it part of the national domain and thereby bring it under Article IV, Section 3 of the Constitution.

And he would have dismissed the bill without prejudice to let the political authorities of the nation decide the ownership of the land of the coast.

In this case, the political judgment that Justice Frankfurter called has been made.

But the Submerged Land Act and the Outer Continental Shelf Lands Act, Congress has allocated a three-mile belt along the Atlantic Coast through this defendant states and claim the remainder of the Continental Shelf for the United States.

So that even under the rational of Justice Frankfurter's dissent in California, the United States would be entitled to judgment here.

But I think the majority opinions in California, Louisiana, and Texas remain the law and also completely foreclosed the claims of defendants here.

The Special Master concluded that these cases require as a matter of law the entry of judgment for the United States on its motion.

I renew that motion here.

The major purpose of the doctrine of stare decisis is to insure finality and certainty, and hence the rapid disposition of future cases involved in the same issue.

I would suggest it is particularly appropriate that the doctrine be applied here since the leasing program mandated by Congress in the Outer Continental Shelf First Act and an urgent aspect of the President's efforts to improve the energy situation must await the outcome of this litigation.

I think that is the basis for our motion for judgment.

I think its sound, the remainder of defendant's arguments are attempts to undercut the historical foundations of the California case by trying to prove that they obtained title to the seabed of the Outer Continental Shelf in Colonial Times and have retained it to this day.

Well, that effort is heroic.

But the title they claim faces an endless series of hurdles, and I'm afraid to say that I don't think their arguments get over any one of them.

The first difficulty with the states title and I guess it wouldn't be proper to call it a fatal difficulty because the first difficulty is that it never existed.

Neither the English Crown nor the American Colonies ever owned the seabed of the Outer Continental Shelf.

In the English law of the period lends no support to any such claim of territorial sovereignty, that conclusion as I say was reached by the Special Master here was read by this Court in the California case.

As our brief show, it was reached by two Justices of the high court of Australia.

In the case there, the two Justices who reached the issue in that case and it was reached by the Supreme Court in Canada in a case involving British Columbia's claims to the offshore land.

That's a rather awesome array of judges in tribunals who have decided the defendant's basic premise and basic historical premise here is simply wrong.

Now the Special Master's finding rest upon evidentiary detail which is far too copious to be dealt with effectively in oral argument.

And we will rely primarily upon this Report and upon our brief in this Court and upon our opening in reply briefs before the Special Master.

And I want to say, if one gets into this historical record, it is indispensable that the briefs before the Special Master be read because there are endless historical disputes in this case.

I think I first decided that the historical evidence did not lend itself to extended oral presentation when I found myself trying to distinguish between the various meanings that one can attribute to Robert Coles' 1622 lectures on the statute of sewers.

But I do wish to say that we did not agree with the counsel's characterization of this case that his case is utterly crystal clear.

I think it is utterly crystal clear that the evidence is dead against the position here just here.

Now, defendant's brief is filled with assertions, fact as settled or as conceded that are actually disputed in detail and I want to give one example.

As a matter of the 100-mile limit of that was said to be the plain English law of territorial sovereignty over the sea, that 100-mile territorial claim, I'm afraid is a figment of historical imagination.

We think there are only two cases, two instances, where it was put forward in that form.

One was by Professor John Tilley for doing the Stuart era argued the Price case in an English court.

The Dutch had captured a Spanish ship, I believe it was and representing the Spaniards, Professor John Tilley urged the Court that the ships which have been brought in English Port could not priceless because they have been taken with in a hundred miles of the English Coast and that was an area which the English owned and therefore must be respected as neutral.

The Court rejected the argument and awarded the Price as to the captors.

The only other know evidence is the letter by the Earl of Salisbury, suggesting that an ambassador might make such an argument to the Spanish.

That's all we know about it.

It's not shown that anybody ever made such an argument.

The rest of these 100-mile limits occur in a variety of writers and there are various limits suggested 60 miles, 10 miles, 100 miles, but it's quite clear if one examines them, that it is always a protective jurisdiction which is asserted to go out to 100 miles not ownership of property, not territorial sovereignty.

It is a jurisdiction for purposes of protection against pirates, a regulation of navigation when it's important and that sort of thing.

It is not a territorial claim so that there is 100-mile limit as we look out very carefully.

In the sense of a territorial claim has only advanced seriously once that we know of and rejected by the court in that case.

In fact, it should be said I think that the states case in the sense rest upon historical case, rest upon a confusion between maritime jurisdiction are claimed exercise admiralty powers a protective concept of jurisdiction.

They are constantly confusing statements made in that context with statements of claims to ownership and that's where a large part of this case is so confusing.

But once that confusion is eliminated, it is seen that indeed there is very little to the states historical case.

To summarize briefly, English law made no claim to the ownership of even the English seas and the seabed during the brief period -- except during the brief period of Stuart pretensions from 1603 to 1688.

And those claims vanished with the Stuart Dynasty.

Certainly, there was no pretense to legal ownership by 1776.

Moreover, there is not a shred of evidence that event the Stuart's claimed ownership of any part of the American seas much less the seabed of the American Outer Continental Shelf.

The Stuart's claims to ownership in English Seas rested quite simply upon naval domination that was never approached in the American Seas.

And here again is a source of confusion in this case.

We hear of talk about claims to fisheries or sedentary fisheries.

Of course, there were claims because it was then established that one could get property rights in an area of the sea or in the seabed by effective proscription and occupation.

And if you work, the oyster bed for period of time and fence out foreign fishermen you had established ownership in the sense, but only to the area which you occupied and only to the fishery as to which you had a right of proscription.

And so disputes about fisheries here show very little about the claim of broad territorial sovereignty.

English -- the English vest never had ownership of the Outer Continental Shelf that could be passed on to the Americans and as the Special Master found the Colonial Charters did not grant such rights.

Head English title existed as an attribute of governmental power and had it been passed in some form to the colonies.

That ownership would have revered to the Crown before American Independence because it is quite clear that by 1754, all but three colonies had become Royal Colonies and were governed directly by the Crown and as to the others, most of their Governmental powers had in fact reverted.

The Crown repeatedly disposed of vacant and unappropriated lands in the colonies without regard to the boundaries set out in the original charters.

A charter grant of lands was merely a grant of an opportunity to establish settlements and to appropriate land.

As incidence to Government and if the land was not settled or appropriated even though it was in the grant, the Crown would sometimes take it back or reallocated.

In most cases, in most powers -- in many cases all powers had reverted to the Crown by the eve of independence.

And this was especially the case with respect to maritime ladders which were governed ultimately from England.

So that even if the three colonies that had not become Royal colonies lost any dominion over the sea which they might they conceivably have gained as attribute of external sovereignty.

It's perfectly clear I think that there were no seabed rights in the colonies on the eve of independence and the Master so found.

But this is by no means the end of the difficulties with defendant's case.

It should be assumed for the sake of argument.

And I think it is only for the sake of argument.

That this Court, the Special Master and the Australian and Canadian judges have all been wrong about English law.

And hence defendant's alone correct, I think there are two propositions that as a matter of law, established the right of United States to judgment here and I pass to this now.

Special Master found that if there were title to the seabed in either the colonies or the English Crown, such rights passed United States at independence on July 4, 1776 or the latest upon ratification of the Constitution in 1789.

There never was a time when any of these dates existed as independent sovereignties with external powers of Government.

The National Government was formed and was in operation prior to the existence of any state.

The Special Master said, “I find that upon the establishment of the First Continental Congress in 1774, the United States of America emerged.”

And I --

Justice Harry A. Blackmun: Mr. Solicitor General, you would apply that statement to both Rhode Island and North Carolina?

Mr. Robert H. Bork: I would indeed.

I would indeed.

Mr. Justice Blackmun, I think as the special, in this conclusion as I recall the Special Master takes as the two effective dates when the rights the seabed if any had existed would have pass to the federal government as independence and ratification of the Constitution.

I think it's fair to say that there isn't in this report a suggestion that one could equally have chosen to addition dates.

One would be the formation of the First Continental Congress and the Acts for the Second and the governing power that they assume immediately.

The other I suppose would have been the treaty of piece, 1783.

But it's important I think to realize -- it's important I think to realize just what the history of that period was.

One of our witnesses, Professor Richard Morris has written an article consisting largely of matters he said in his testimony and I think that perhaps in excessive sense of delicacy we did not say, theoretically in our brief, being less delicate, I would like permission to cite it now.

It appears in the Columbia Law Review volume 74, number 6, as October 1974 in which he considers the historical evidence about the forming of the Union and it's pretty quite plain.

It's also in his testimony.

It's also quite plain that a national government was formed with the First Constitution -- First Continental Congress.

Representative were chosen by the people of the colonies and not by the colonial governments except in one instance.

Justice William H. Rehnquist: Were all 13 states represented in the First Continental Congress?

Mr. Robert H. Bork: Twelve were represented in the first, I believe Mr. Justice Rehnquist.

Justice William H. Rehnquist: Which was one was it?

Mr. Robert H. Bork: I beg your pardon?

I think it was Georgia.

I hear Georgia being --

Justice William H. Rehnquist: Would Georgia be --

Mr. Robert H. Bork: I had myself being supported in the Georgia claim.

Justice William H. Rehnquist: Would Georgia be bound in by whatever the First Continental Congress did?

Mr. Robert H. Bork: I think Georgia submitted to its -- to the jurisdiction and the power of the First Continental Congress and in that sense, I think was bound and certainly came into the Second Continental Congress.

But I'm describing a period before independence in which the Continental Congress initiated the formation of the states by resolution.

First at ad hoc and then by general resolution calling for state governments.

The Continental Congress issued the declaration of independence and in fact, the declaration is in its own terms said to be a declaration by the representatives of the United States of America in General Congress Assembled.

And during this period of time the Continental Congress took jurisdiction over admiralty cases away in the sense that it would hear appeals from state courts to a committee of Congress and asserted jurisdiction to make treaties where foreign powers are dead, assume the powers of war and peace, even passed laws about treason requiring allegiance to the United States Government not to the state government.

So I think it's quite clear that there was a national government operating and claiming legal powers and exercising legal powers before the states had fairly become into existence.

Justice Potter Stewart: Well, isn't also true Mr. Solicitor General that in the period after 1776 and before the ratification of the Constitution that at least some of the states were purporting or trying to carryon their own foreign policies?

Mr. Robert H. Bork: I think there was some -- I think there was no successful effort at that.

I think Russia and some other countries have attempted at one point to deal with the states individually.

Justice Potter Stewart: Wasn't that really one of the very basic reasons for the constitutional convention in Philadelphia?

Mr. Robert H. Bork: Well, I think --

Justice Potter Stewart: Wasn't that one of the big problems?

And wasn't that --

Mr. Robert H. Bork: I think --

Justice Potter Stewart: The basic accomplishments of the Constitution of the foreign policy of this newly independent united or partly united newly independent states and this --

Mr. Robert H. Bork: I think --

Justice Potter Stewart: -- the eastern shore of the North American continental to put the foreign affairs into one sovereignty rather than keeping the 13?

Mr. Robert H. Bork: I think it was quite clear even so before that Mr. Justice Stewart that United States insisted upon speaking for the states and not letting the states run their own foreign policy.

I think diplomatic -- a diplomatic experience from 1776 on shows that.

Chief Justice Warren E. Burger: What was the first mission of the First Continental Congress authorized?

Mr. Robert H. Bork: First mission abroad?

I don't know and I was wondering if they had similar help from the bench here.

I don't know the firs mission abroad that they authorize.

But they did -- in 1775 the Continental Congress addressed messages to the Governments of Europe on behalf of the United States.

Chief Justice Warren E. Burger: There were many such missions between 76 and 87 and 89.

Mr. Robert H. Bork: Certainly, the Peace Treaty of 1783 with England was negotiated on behalf of the entire United States and claimed fisheries which seemed to loom large in this case on behalf of the entire United States the American people not on behalf of any state.

Fisheries offer a coast.

Justice Potter Stewart: But the states were -- not only as I say making moves toward carryon along foreign policies regardless of what the Continental Congress might have also been doing and also they were coining money and asserting other aspects of absolute sovereignty were they not?

Mr. Robert H. Bork: I have no doubt Mr. Justice Stewart that internal --

Justice Potter Stewart: And that in the sixth grade that's the reason they sent their people to Philadelphia in a hot summer by a Constitution.

Mr. Robert H. Bork: That is quite true.

I think the coning of money is not example that bears upon this case and the other thing the states did such as erecting --

Justice Potter Stewart: What happen to the sovereignty though or it was their thought that they were?

Mr. Robert H. Bork: They -- I think they had a thought that they were absolutely sovereign internally in internal matters.

I think they did not have the same thought with respect to diplomatic matters and speaking abroad.

I think the United States almost without exception Congress had sent people abroad who dealt for the United States.

Chief Justice Warren E. Burger: Would you to show that the United States of 1774, 1775, 1776, and 1777 exercised all the powers of sovereignty including raising the environment.

Mr. Robert H. Bork: No, no, I think said it doesn't.

I was merely pointing out that I think there are other dates even earlier than independence by which a national government was in existence and had external powers and precluded the states from dealing independently and I will make the claim the states, Mr. Justice Stewart I think never made a claim any of them to be recognized as independent nations in international law.

Justice William H. Rehnquist: Well, do you say that Continental Congress precluded the states from dealing independently?

I think probably you can make a strong historical argument that Continental Congress did deal for the state.

But it had no authority of anything coming from the present Congress over the individual states, did it?

Mr. Robert H. Bork: Well, I think it did in this sense.

For example, there was repeated disputes about whether or not Congress could take and review admiralty cases decided in state courts.

This was before the independence are left after independence.

And the states involved said no, and Congress said yes and did review them and did reverse state decisions.

And Congress made that admiralty jurisdiction stick before independence or right on time of independence.

I think it was before --- I was asked the question before whether it was the first commission and I am informed the first commission was to Britain before 1776 and that Jefferson – Thomas Jefferson was a representative.

But this argument about when we became a nation I think is not essential to my argument.

I just – I think it is prior independence.

In any case, aside from the historical evidence is quite this Court in Penhallow against Doane.

By the way a finding of this Court, Mr. Justice Rehnquist that New Hampshire did not possess admiralty jurisdiction during the revolutionary war on the ground that Congress representing the states was sovereign in external affairs.

So that it is -- I think judicial authority as well as historical argument.

And of course, it is well known in the case of United States against Curtiss-Wright Corporation.

This Court held that determined that external sovereignty had passed directly from the British crowns of the United States and had never lodge in the individual states.

That dominion follows sovereignty as well settled in some of the cases we discussed because the state right the seabed under the inland waters in fact were decisions had said dominion in the states follows the sovereignty of the states.

The Report of the Special Master here deals fully with a stop.

They cannot and shall not labor it further but we have this Penhallow against Doane and United States against Curtiss-Wright Corporation and other decisions.

So I think its aside from historical evidence the doctrine of stare decisis here requires judgment of United States as well.

Now I think at the latest the ratification of the Constitution in 1789 would have conferred this ownership upon the United States.

I tend to think it occurred myself in 1774 but I don't think anything in this case turns upon that and therefore I will not press that point.

Finally, I will assume for my final point, I will assume that the state ownership of the Continental Shelf once existed and somehow survived the series of traumatizing events that we've discussing.

It is then clear I think that United States when it adopted early in its history the three-mile limits and certainly went it took a lead among nations in getting that limit established as international understating United States by that Act renounced sovereignty in the adjacent seas and seabed outside the three-mile limits and it is quite clear this Counsel for the defendant states has said, United States in international matters may cede part of the states territory without the states consent on its boundary.

If it is citing in foreign relationship and international matters and the Special Master so concluded that that Act would have cut off any surviving state claim to any part of the seabed.

Now, the three-mile limit was maintained and enforced until 1945 when President Truman of course claimed the Continental Shelf and in 1953 Congress claimed the resources outside the three-mile limit for the United States as against the States and as the California decision held, the assertion of national dominion over the sea and seabed is binding upon this Court.

It follows from this history that any rights the states may have once have or extinguished with adoption of the three-mile limit and federal rights were later created.

And these series of events I think standing alone is sufficient to require judgment of United States.

I suppose I should say a word about the equitable argument made by counsel for United States that only a judgment for his clients will allow sharing in the proceeds.

I think that's not correct conceptually because I take it the judgment for the United States will be used for the benefit of the entire United States which is a form of sharing a different allocation in the share perhaps but in addition to that, it is worth saying that Congress has previously responded to the decisions of this Court by giving this defendant states certain rights.

There are proposals on Congress for that kind of allocation of revenues perhaps I don't know if the proposal will pass but they are being considered should United States prevail in this litigation to share the revenues with the states.

I have argued for proposition which I think each independently requires judgment to the United States.

I respectfully urged that if it can be done, United States motion for judgment be granted.

Because there is an urgent need to have this cloud on title settled.

So that in one ownership or another development of the long process or development of the Outer Continental Shelf fore emergency needs can begin.

Chief Justice Warren E. Burger: Mr. Solicitor General, Mr. Clagett suggested that the doctrine of the voting in the California case again suffer some erosion or at least further erosion by the 1953 Submerged Lands Act.

Do you have any comment on that?

Mr. Robert H. Bork: Yes, Mr. Chief Justice.

I think that as I try to touch upon the -- this Court certainly didn't think so because after the submerged land Act, this COurt said that in the Second Louisiana case that the California decision may not impair it.

In addition to that, I take it that the connection between sovereignty and ownership in the California case is not inseparable, it just inseparable by this Court.

The political authorities having the sovereignty and the political power that is Congress and the President having the external sovereignty in their hands may make a decision, a political decision, how much ownership is necessary to the exercise of that sovereignty.

And they have made political decision.

I don't think that impairs the California case in any way.

Chief Justice Warren E. Burger: Very well.

Mr. Clagett, you have 14 minutes left if you would prefer not to divide between three minutes now and tomorrow, we will give you the option of doing it all tomorrow morning.

I have one or two things to say about each of the Solicitor General's four arguments.

First, the alleged preclusion by California, he says if I understood him correctly that California holds only that if a state has no historic title and the Court must decide in the absence of such a title then the federal interests are stronger and would prevail.

He disclaims as I understood in many argument that the federal interest would require overriding in a historic title because the shelf is in necessary appurtenance of federal constitutional powers.

This fights in the face however of his other argument that even if the states had in historic title at the ratification of the Constitution they then lost it.

They would lose it surely only if it was necessary for the federal government to have it, to protect its constitutional interest.

And if it is thus necessary, how can Congress give it away.

The Solicitor General, I submit cannot have it at both ways.

If Congress was free to give part of the shelf to the states in 1953, then shelf ownership is not necessary to federal powers as he admits, and since it is not necessary then the Constitution would not have taken on historic state title away.

Chief Justice Warren E. Burger: This, in your view then it is not within the power of the sovereign to decide in what particular instances it might be necessary and in other instances that it could be yielded in part that that is not within the broad sovereign power.

Mr. Brice M. Clagett: Not in the event of an antecedent historic title Mr. Chief Justice.

It seems to me that a title to property which was vested in a state before and at the time of the revolution could only be taken if there were some constitutional necessity for taking it.

Chief Justice Warren E. Burger: But Congress in passing that Act assumed and of course acted on the assumption that it had the title, did it not?

Mr. Brice M. Clagett: Yes, Your Honor and that's precisely why the Act has to be unconstitutional if Congress was wrong on that point.

There's no dispute here as I understand it that if the states did have a vested title and property then the Outer Continental Shelf Act is unconstitutional.

I take it the point concedes that.

I might add that the Congress did its best to restore to the states all the title which it was then aware that the states had.

Probably, because no valuable resources as of that time had been discovered in the Atlantic Ocean, nobody done his homework and nobody knew what the history was and the states were not then articulating their claim very well.

So, Congress passed that Act under a misapprehension.

It intended to and it thought it was restoring to the states all the title they had.

Justice Potter Stewart: Which Act, the Outer Continental Shelf Act?

Mr. Brice M. Clagett: These are the -- both Acts taken together.

Justice Potter Stewart: Both Acts taken together?

Mr. Brice M. Clagett: Yes.

Justice Potter Stewart: Right.

Mr. Brice M. Clagett: I would add that there is no need for you to overrule the holding of California in order to decide for the states here.

That holding of course was the California did not own the three-mile belt.

If you hold in our favor on the basis of an historic title, then that holding would not apply to any state which might California lack such a title.

To be sure, California and other states might renew their claim but the "equal footing" doctrine would require them to have the same amount of shelf as the Atlantic states.

But the Court could well hold as it did in Alabama versus Texas quite clearly that the "equal footing" doctrine requires nothing of the kind.

It does not require that every state own an equal amount of Continental Shelf any more that it requires that every state have its large of land territory as the State of Texas and the State of Alaska.

I think I fail to make myself altogether clear yesterday as to the circumstances in which if the Court should decide in our favor, federal intervention in the shelf would require compensation to the states and the circumstances in which it would not.

Now as I see at three possible situations.

One, the federal government takes oil or there shelf resources owned by the states for its own use.

That plainly would be a taking and would require compensation.

Two, the federal government by treaty agrees with other nations that the Continental Shelf under exclusive American ownership is not as large as it is now considered to be.

Thereby, cutting of state ownership as to some parts of it that would a federal act to adjusting boundaries or settling international law in the exercise of the foreign affairs power.

It would not in my submission be a taking and it would not require compensation.

I might add that the question of that question is wholly academic at least as to the foreseeable future because the whole tendency in international law and policy at the moment is to expand Continental Shelf rights not to cut them back.

Three, the federal government in the interest either of national defense or for economic reasons tells the states that they must develop shelf resources faster or differently from what they are doing.

The state’s retaining ownership and still receiving the revenues that would not be a taking quite clearly and would not require compensation anymore for example; than federal resource allocation during World War II did or any of the other kinds of paramount power that the federal government habitually assert especially in times of national emergency overall the resources of the country.

It would be perfectly proper federal regulation thus a decision for the states here will in no way retire or hamper Continental Shelf exploitation or development if the national interest is found to require that.

Next, as to the Solicitor General's argument that the states never acquired any property interest in the shelf, it is hard to respond to this because it was stated almost entirely in conclusory terms without reasons or facts.

The Solicitor General did make one specific statement however.

He said that the hundred-mile rule was recognized on only two occasions by -- and the Earl of Salisbury to the contrary.

The hundred-mile rule was declared by among others the following eminent British authorities: William Welwood in 1613, Gerald Malynes in 1622, Thomas Neal in 1704, Sir Charles Hedges, Admiralty Judge and Secretary of State, in a formal legal opinion of 1713, and Josiah Burchett, Secretary of the Admiralty in 1720.

Further proof is found in the Colonial Charters themselves beginning with the Charter of 1606 which created a hundred-mile territorial sea all up and down the coast of these very defendant states.

As shown in our supplemental brief in detail and addition the overwhelming consensus of international law authority throughout the 17th and 18th centuries was in favor a hundred-mile territorial sea.

Finally and perhaps conclusively, 13 leagues which is virtually identical to a hundred miles was the boundary asserted and enforced by Britain throughout the 17th and 18th centuries for its territorial sea and exclusive fishing rights in these very waters here under dispute in North America.

As to -- that boundary was incorporated into the Treaty of Utrecht in 1713.

But Britain regarded the 13 leagues applicable all up and down the coast of these states as well.

The proof is our exhibit 327, in map volume 3 of our appendix which is the British copy the very -- British map used in the Peace Negotiations of Paris in 1782-83.

That map shows the 13-league boundary drawn all the way down the coast of these defendants' states.

I can only -- I have no time to discuss the Solicitor General's assertions about the Australia and Canadian cases.

I can only say that we submit they are widely inaccurate.

I can only beg to the Court to study pages 477 through 85 of our supplemental brief on that subject.

Next, the Solicitor General contends its federal government would've succeeded to any Continental Shelf rights than in existence at independents or sometime around there.

I can confess as I heard the Solicitor General was eloquent about the sovereignty of the First Continental Congress.

I was wondering why we were not celebrating the bicentennial this year instead of waiting for some later wholly ancillary event.

On the point of whether the states were ever fully sovereign, the key to understanding the events of that period we submit is that the states were regarded as identical to the United States not the United States being a distinct and separate national government in any sense.

It was the United States of New Hampshire of Massachusetts, etcetera.

The term was always spelled out in full in that fashion.

Of course the states carried on foreign relations not only separately which they did to a quite considerable extent but primarily through their joint representatives.

Congress was the states.

Congress was made up of ambassadors from the states known as congressman.

Every treaty that Congress made was made in the name of each one of the states enumerated separately.

The nature of the confederation was exactly what the articles of confederation and carefully chosen language said it was a firm league of friendship.

And it was universally recognized that the federal league or confederation was a group of several sovereign states which retain their full individual sovereignty that tell in -- who the international lawyers best known to the founding fathers expressly so stated.

Chief Justice Marshall agreed as I have mentioned yesterday in Gibbons versus Ogden.

He declared that the states "were sovereign, were completely independent and were connected with each other only by a league."

There's nothing to the contrary in Penhallow versus Doane which merely holds that Congress had the power to erect an admiralty court with appellate jurisdiction from the state highest courts for the reason that the states and in particular New Hampshire, the state which was there contesting it had consented to it.

There's not a word in the case of any inherent federal sovereignty derived from the crown or if any federal powers other than those granted by the states.

Justice Potter Stewart: There is something to the contrary in the Curtiss-Wright opinion?

Mr. Brice M. Clagett: Yes, indeed, there is Your Honor.

Justice Potter Stewart: Do you think that's wrong? You too?

Mr. Brice M. Clagett: Yes, sir.

And of course it purports to cite Penhallow but as Julius Goebel said in his first volume of the history of this Court some slightly sloppy language in Penhallow was then used Curtiss-Wright to support, I forgot the exact words in utterly inadmissible version of historical events.

Even if the Solicitor General were right about sovereignty, even if he were right which he isn't, the historical record and the decisions of this Court show beyond any question whatever that the United States was never regarded as acquiring any territory or property other than in right of one of the individual's states and nothing was ceded to the federal government but what was expressly ceded.

The Constitution draws the sharpest possible distinction between the territory and property of the states which remain intact and the paramount rights of the federal government which were superimposed upon them, the ratification of the constitution transferred no territory and no property.

Finally, as to the Solicitor General's claim that our Continental Shelf rights were destroyed by the three-mile limit.

Our briefs and the testimony at the trial particularly that of Judge Philip Gesoff who is the world’s leading authority on the subject proved beyond the shadow of the doubt, that the Solicitor General’s argument is wrong.

The three-mile limit applied only to surface waters never to the seabed.

As this Court itself said in the second Louisiana case, maritime boundaries to different distances are recognized for different purposes.

The United States never construed the three-mile limit as cutting off seabed rights.

Wholly to the contrary in the bearing sea arbitration, the United States took it is a fundamental principle that the three-mile limit had no application to seabed rights.

And the United States like every other nation asserted exclusive ownership of seabed resources beyond three miles wherever they existed and were exploitable as in the case of the Philippine Pearl Fisheries.

Justice Potter Stewart: When was the three-mile limit association?

Mr. Brice M. Clagett: The three-mile limit was first mentioned by anyone as a boundary for neutrality purposes only by Thomas Jefferson in his letters to the ambassadors within in a year or two of 1790 and 1791.

It was never applied to anything more than neutrality purposes for some decades thereafter and it was never applied to the seabed.

Finally, I must say that we would of course like the opportunity to respond to whatever the Solicitor General may say about further proceedings on this paper he was going to file.

We would therefore ask the Court to set a short time limit for his paper and one for our response.

Chief Justice Warren E. Burger: Thank you Mr. Clagett.

When the Solicitor General and if he files a further proceedings, you'll have 10 days to respond to it.